Comeger v. State ( 2019 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
RICARDO COMEGER, §
§
Defendant Below, § No. 344, 2019
Appellant, §
§
v. § Court Below–Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID 1612009800 (N)
Plaintiff Below, §
Appellee. §
§
Submitted: September 17, 2019
Decided: November 22, 2019
Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
Upon consideration of the appellant’s opening brief, the State’s motion
to affirm, and the record below, it appears to the Court that:
(1) The appellant, Ricardo Comeger, appeals from the Superior
Court’s July 9, 2019 order sentencing him for his fourth violation of probation
(“VOP”). The State has filed a motion to affirm the judgment below on the
ground that it is manifest on the face of Comeger’s opening brief that his
appeal is without merit. We agree and affirm.
(2) The record reflects that, in July 2017, Comeger pleaded guilty to
one count of aggravated menacing in Case Number 1612009800.1 The
Superior Court sentenced Comeger to five years of Level V incarceration,
suspended for one year of Level III probation. Between 2017 and 2019, the
Superior Court found Comeger in violation of the terms of his probation on
three occasions.
(3) On July 9, 2019, the Superior Court found Comeger in violation
of the terms of his probation for a fourth time. The Superior Court sentenced
Comeger to four years and nine months of Level V incarceration, suspended
after three months for three months of Level IV Work Release, followed by
one year of Level III probation. This appeal followed.
(4) Comeger does not dispute that he violated the terms of his
probation. To the contrary, Comeger admits his guilt. However, he asks this
Court to modify his sentence to remove the Work Release condition.
(5) We affirm the Superior Court’s judgment. Once the State has
proven by a preponderance of the evidence that a VOP has occurred, the
Superior Court has the discretion to require the probationer to serve the
original sentence or any lesser sentence that it deems appropriate. 2 If the
1
At the same time, the Superior Court also sentenced Comeger on one count of breach of
conditions of release in a different case.
2
State v. Sloman, 886 A.2d 1257, 1260 (Del. 2005).
2
sentence imposed falls within statutory limits, we will not disturb the sentence
on appeal unless the probationer can establish that the sentencing judge relied
on impermissible factors or exhibited a closed mind when sentencing him.3
(6) In this case, the Superior Court’s July 9, 2019 sentence fell
within the statutory limits prescribed by the legislature, and Comeger does not
contend that the judge relied on impermissible factors or sentenced him with
a closed mind. To the extent Comeger alleges he is entitled to credit for time
he served in an unspecified case that was ultimately dismissed, the Court is
unable to review it. As the appealing party, Comeger had the burden to
request and provide the Court with the transcript necessary to give the Court
a means to review the claim of error.4 Without the transcript of the July 9,
2019 VOP and sentencing hearing, we are unable to review any claim that
Comeger was denied credit for time previously served in an unrelated case.5
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
/s/ Gary F. Traynor
Justice
3
Weston v. State, 832 A.2d 742, 746 (Del. 2003).
4
Mart. v. State, 2016 WL 552686, at *2 (Del. Feb. 10, 2016).
5
Tricoche v. State, 525 A.2d 151, 154 (Del. 1987).
3